104
Submitted December 6, 2019, affirmed January 29, 2020
In the Matter of J. W.,
a Person Alleged to have Intellectual Disabilities.
STATE OF OREGON,
Respondent,
v.
J. W.,
Appellant.
Lane County Circuit Court
19CC00796; A170260
458 P3d 1137
Appellant was committed to the Department of Human Services for a period
not to exceed one year, pursuant to ORS 427.290, on the basis that, due to an
intellectual disability, he was unable to provide for his personal needs and was
dangerous to himself. Appellant appeals the judgment of commitment, arguing that the evidence presented at his commitment hearing was insufficient to
establish that he has an intellectual disability as defined in ORS 427.005(10).
The state contends that the evidence was sufficient. The parties’ dispute turns
entirely on whether the trial court did or did not admit the precommitment report
into evidence at the hearing. Held: The trial court did admit the precommitment
report into evidence. To the extent that its manner of doing so might have been
subject to challenge, appellant did not preserve any claim of procedural error in
that regard. The evidence therefore was sufficient to support the court’s determination that appellant has an intellectual disability for purposes of ORS 427.290.
Affirmed.
Maurice K. Merten, Judge.
Joseph R. DeBin and Multnomah Defenders, Inc., filed
the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jeff J. Payne, Assistant Attorney
General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
AOYAGI, J.
Affirmed.
Cite as 302 Or App 104 (2020) 105
AOYAGI, J.
Appellant appeals a judgment committing him to
the Department of Human Services (DHS), pursuant to
ORS 427.290, for a period not to exceed one year. The trial
court found that, due to an intellectual disability, appellant was unable to provide for his personal needs and was
dangerous to himself. Appellant challenges the sufficiency
of the evidence on all three points. The state concedes that
the evidence was insufficient to establish that appellant was
unable to provide for his personal needs, and we agree and
accept that concession. As for appellant being dangerous to
himself, the state argues that there was sufficient evidence
to support that determination, and we agree without further discussion. We write only to address the sufficiency of
the evidence that appellant has an intellectual disability.
Ultimately, we affirm.
ORS 427.215 to 427.306 addresses the involuntary
commitment of persons with intellectual disabilities. An
“intellectual disability” means “an intelligence quotient of
70 or below as measured by a qualified professional and
existing concurrently with significant impairment in adaptive behavior, that is manifested before the individual is 18
years of age,” or “intelligence quotients of 71 through 75 …
if there is also significant impairment in adaptive behavior,
as diagnosed and measured by a qualified professional.” ORS
427.005(10) (definition for purposes of ORS chapter 427).1 A
person may be committed to DHS for care, treatment, or
training if the court determines that (1) the person has an
intellectual disability; (2) because of the intellectual disability, the person is either (a) dangerous to self, (b) dangerous
to others, or (c) unable to provide for personal needs and not
receiving care as is necessary for the person’s health, safety,
or habilitation; and (3) voluntary treatment and training or
conditional release is not in the person’s best interest. ORS
427.290.
Whether the record contains sufficient evidence to
support a commitment is a question of law, which we review
1
ORS 427.005(10) has been amended since appellant’s hearing, but the
amendments do not affect our analysis, so we quote the current version of the
statute.
106 State v. J. W.
for legal error. State v. D. M., 245 Or App 466, 468,
263 P3d
1086 (2011). In this case, as previously noted, we write only
to address the sufficiency of the evidence that appellant has
an intellectual disability.
Appellant argues that the evidence was insufficient
to establish that he has an intellectual disability, because the
record is devoid of evidence of his intelligence quotient (IQ).
Given the statutory definition of “intellectual disability,” a
person cannot be committed under ORS 427.290 without
evidence of a qualifying IQ. See ORS 427.005(10). Appellant
argues that the only information about his IQ appeared in
a precommitment investigation report with attachments
(the precommitment report) that was never admitted into
evidence. In response, the state argues that the precommitment report was admitted into evidence, without objection,
at the beginning of the hearing.
Appellant does not contest that, if the precommitment report was admitted into evidence, then the evidence
was sufficient for the trial court to find that appellant has
an intellectual disability for purposes of ORS 427.290.
One of the attachments to the precommitment report was
Dr. Northway’s psychological evaluation, which indicates
that appellant has a “Full Scale IQ Score falling between 60
and 68 with 95% confidence,” that his intellectual disability has been present since childhood, and that his adaptive
behavioral testing scores “are strongly suggestive of a relatively significant intellectual disability.” Thus, the critical
question on appeal is whether the precommitment report
was—or was not—admitted into evidence.
The trial court docket shows that, several days
before appellant’s commitment hearing, a copy of the pre-commitment report was filed with the court. And, at the
beginning of the commitment hearing, the trial court stated
on the record that it had “received” the report. Specifically,
the court opened the proceeding, advised appellant of his
rights, and, before the lawyers had spoken, stated:
“THE COURT: I received a report of pre-commitment
investigation sworn to by Ms. Morales, and its attachments. Ms. Morales, is there anything you want to add to
your report?
Cite as 302 Or App 104 (2020) 107
“MS. MORALES: No, Your Honor.
“THE COURT: Who do you want me to hear from?
“MS. MORALES: Briana Johnson, Your Honor.
“THE COURT: Please come on up.”
Johnson and other witnesses proceeded to testify. None of
the witnesses mentioned the precommitment report, nor
did the state ever refer to it. However, appellant’s own trial
counsel mentioned it in closing argument—as will be discussed shortly—and the trial court expressly cited it in its
judgment of commitment.
The state views the above-quoted statement by the
trial court as a ruling admitting the precommitment report
into evidence, without objection by appellant.2 Appellant
disagrees, asserting that the report was never admitted into
evidence, even if it was in the trial court’s physical possession. Notably, the report was not marked as an exhibit, and
the official hearing transcript lists the exhibits admitted as
“none.” Yet, notwithstanding the obvious benefits of marking exhibits when receiving evidence, appellant does not
point to any authority that actually requires evidence to be
marked as an exhibit to be admitted into evidence. Moreover,
during closing argument, appellant’s trial counsel referred
to the precommitment report in a way that indicates that he
understood it to have been admitted into evidence. Counsel
referred to “the report that Ms. Morales presented,” pointed
to the “part of the report” that was “Dr. Northway’s examination of [appellant],” and argued that Northway’s evaluation was “hearsay without testimony of Dr. Northway, who
has not presented any evidence today to this Court.” In
2
The state asserts that the trial court admitted the precommitment report
by receiving it on the record at the beginning of the hearing; it does not contend
that the court could consider the report without admitting it into evidence. Under
the statutory scheme, the court necessarily receives a copy of the precommitment report before any commitment hearing is held. See ORS 427.235 (notice and
investigation procedures). As such, the precommitment report will always be in
the trial court’s physical possession and, once filed, part of the trial court record.
However, ORS 427.285 provides that “[t]he investigator and other appropriate
persons or professionals as necessary shall appear at the hearing and present
the evidence.” For purposes of this opinion, we assume, as the parties do, that the
report had to be admitted into evidence at the hearing, even if it was already in
the trial court record.
108 State v. J. W.
other words, appellant’s trial counsel implicitly recognized
that the precommitment report was in evidence but argued
that one part of it—Northway’s evaluation—was inadmissible hearsay. The trial court implicitly overruled appellant’s
hearsay objection.
On appeal, appellant does not assert that the trial
court erred in overruling his hearsay objection.3 That is,
appellant does not assign error to an erroneous evidentiary
ruling regarding Northway’s evaluation. See ORAP 5.45
(3)(a) (“Each assignment of error must identify precisely the
legal, procedural, factual, or other ruling that is being challenged.”). Rather, to the contrary, appellant’s argument is
premised on the trial court not having admitted any part of
the precommitment report into evidence.
We agree with the state that appellant’s position in
that regard is untenable. The trial court expressly stated at
the beginning of the hearing that it had “received” the pre-commitment report. To have “received” something does not
necessarily mean to have received it into evidence in a legal
proceeding. See, e.g., Webster’s Third New Int’l Dictionary
1894 (unabridged ed 2002) (“to take possession or delivery
of”); Black’s Law Dictionary 1522 (11th ed 2019) (“[t]o take
(something offered, given, sent, etc.); to come into possession
of or get from some outside source”). On appeal, appellant
apparently views the trial court as having meant “received”
in the general sense of having physically received possession
of the precommitment report, not in the technical sense of
having admitted it into evidence. That argument is not specious. In particular, the trial court’s use of the past tense
(“I received a report ….”) lends some support to it, because
the court had physically received the precommitment report
in the past, whereas there is no record that the court had
admitted the report into evidence in the past. Ultimately,
however, after close review of the transcript, we conclude
that, in context, the trial court meant—and the parties
would have understood that it meant—that it had received
the report into evidence. Indeed, appellant’s trial counsel
3
Because appellant does not challenge the trial court’s rejection of his hearsay objection, we express no opinion on whether that objection was timely or
well-taken.
Cite as 302 Or App 104 (2020) 109
did understand that at the time, given his statements in
closing argument.
To the extent that appellant now takes issue with
how the report was received into evidence—e.g., that it was
received sua sponte, that it was not marked as an exhibit,
that the trial court did not provide an opportunity for objections before admitting it, etc.—appellant did not preserve
any claim of procedural error. “No matter claimed as error
will be considered on appeal unless the claim of error was
preserved in the lower court and is assigned as error in the
opening brief in accordance with this rule, provided that
the appellate court may, in its discretion, consider a plain
error.” 4 ORAP 5.45(1). Appellant never objected to the procedure by which the trial court admitted the report. To be
sure, it was the state’s burden to prove that the requirements for commitment were met, and, if the state failed to
ensure the admission of critical evidence, the state would
bear the consequences of that shortcoming. Here, however,
the trial court did admit the evidence, and, to the extent its
procedure for doing so was flawed, appellant failed to preserve any claim of procedural error (other than the hearsay
objection that he does not pursue on appeal). We therefore
reject appellant’s argument that the evidence was insufficient to find that he has an intellectual disability for purposes of ORS 427.290 and, accordingly, affirm.
Affirmed.
4
Appellant does not request plain-error review, nor would we be inclined to
provide it in these circumstances.
